HASSAN AMMAL BIBI Vs. ISMAIL MOIDEEN ROWTHAR

JUDGEMENT

(1.) The plaintiffs in this case claim under an assignment from the auction-purchaser at an execution sale of the 1st defendant s interest in certain property, which was in the enjoyment of the 1st and.2nd defendants as tenants-in-common. The sale took place on the 16th March 1898 and was confirmed on the 21st April 1898, and the sale certificate issued on the 22nd April 1898. The present suit was brought on the 15th April 1910, but it was only when it was amended on the 15th October 1910, that it became a suit to enforce the plaintiff s rights as representatives of the auction-purchaser to partition the property to which they were entitled as tenants-in-common with the 2nd defendant. This date, therefore, must be regarded as the date of instituting the suit. The Subordinate Judge has dismissed the suit, as barred under Section 47 of the Code of Civil Procedure, on the ground that possession was never obtained under Order XXT, Rule 96 of the Civil Procedure Code, 1908 (section 318 of the old Code). It is unnecessary to consider whether the section is applicable to a case where the judgment- debtor whose interest was purchased was in joint possession with a third party, because I think that the title having vested in the plaintiffs assignor under Section 65 and Order XXI, Rule 94, they were entitled to bring the present suit without obtaining any formal delivery of possession. The decision in Yelumalai Chetty v. Srinivasa Chetty 29 M. 294 was to this effect and it was the duty of the Subordinate Judge to follow it instead of indulging in idle speculations as to Section 318 not having been present to the mind of the learned Judges who decided that case. That decision is also in accordance with Khironda Kanta Roy v. Krishna Das Latha 6 Ind. Cas. 467 : 12 C.L.J. 378; Ramlakhan Rai v. Gajadhar Rai (Gajadhar Rai v. Ramlakhan Rai 5 Ind. Cas. 273 : 33 A. 224 and Bhagwant Singh v. Bhola Singh 18 Ind. Cas. 465 : 35 A. 432 : 11 A.L.J. 642. The Subordinate Judge has also held that the suit is barred under Article 137 of the Limitation Act, here agaia disregarding the recent ruling of this Court in Durvada Hari Kristna Choudhary v. Sripada Venkata Lakshmi Narayana 5 Ind. Cas. 491 : 34 M. 402 : 7 M.L.T. 155 : 20 M.L.J. 323; (1910) M.W.N. 555 that Article 144 was the Article applicable, a decision which it was his duty to follow. It has not been attempted to support the Subordinate Judge s decision that the suit was barred under Article 137, as clearly at the date of the sale the judgment-debtor was not out of possession within the meaning of the Article. It has, however, been contended that as he was then in possession with the 2nd defendant as tenant-in-common, he was in possession at the date of the sale with him within the meaning of Article 138 and that that Article applies.

(2.) Now apart from Yelumalai Chetty v. Srinivasa Chetty 29 M. 294 there is authority for holding that Article 138 will not apply when the defendant does not claim through or under the judgment-debtor. Khiroda Kanta Roy v. Krishna Das Laha 6 Ind. Cas. 467 : 12 C.L.J. 378; Bhagwant Singh v. Bhola Singh 18 Ind. Cas. 465, 35 A. 432 : 11 A.L.J. 642. Here the 2nd defendant is not a person claiming through the judgment-debtor, the 1st defendant, and, there-fore Article 144 and not Article 138 would be the Article applicable. I am, therefore, not prepared to differ from the decision in Yelumalai Chetty v. Srinivasa Chetty 29 M. 294 and would allow the appeal, reverse the decree, give the plaintiffs a preliminary decree for partition and remand the case to the lower Court for disposal according to law.

(3.) Seshagiri Aiyar, J.--One Ramaswami Iyengar obtained a decree against the 1st defendant and brought the plaint properties to sale and purchased them himself. Peer Mohideen, from whom the plaintiffs in this suit derive title, purchased the properties from the said Ramaswami Iyengar under Exhibit B on the 11th July 1898. Ramaswami Iyengar obtained his sale certificate under the Court sale on the 22nd April 1898 (Exhibit A). The 2nd defendant is the brother of the 1st defendant and the other defendants claim under the 2nd defendant. The plaintiffs sue for a partition of the properties and for the allotment of a half share to them. The defendants raised various pleas on the merits; they were all found against them by the Subordinate Judge, but he dismissed the plaintiff s suit on two grounds, namely, that the suit was not maintainable by reason of Section 47 of the Code of Civil Procedure, and that it was barred by limitation under Article 137 of the Limitation Act. In appeal Mr. Rangachariar contends that the lower Court is wrong on both the points.